35 F. 537 -

35 F1d 537

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Case Text

BAKER

v.

CARGO AND MATERIALS OF THE SLOBODNA.

537

and had no information or knowledge that it belonged to any one else; that there was no one living on the island, and that he saw no one there except those whom Scott took there; and that he never had any notice or information that the libelant claimed any interest in the guano, and never heard of him at all until the libel was' filed, in October, 1885; that on the return voyage the schooner sprung a leak, and put into Pensacola in 'distress, where the cargo was discharged, the vessel repaired, and after a delay of over two months the cargo was taken on board again, and carried to Philadelphia. There, upon the vessel's arrival, the cargo, by charterers' order, was delivered to J. J. Allen's Sons. That none of the owners of the schooner had any interest in the cargo except the freight. On the part of the libelants there is no testimony which controverts these statements of the master, and no evidence whatever to affect the oWners of the schooner, or any of them, with any knowledge that the schooner was not engaged in a perfectly honest employment for the sole purpose of earning freight, or to show that they had any interest in the cargo itself. It is apparent, therefore, that this is not a case in which the master, in the course of his employment, has actually' or constructivelyconverted to the use of the vessel or its owners the property of others. All that the master obtained was the freight earned under the charter-party, which was the usual freight for such a voyage. There is no evidence to show that the master had any reason to suppose that his charterers had not a right to take the guano. He received and delivered it openly, and without notice' of any claim asserted by the libelants. Having received the cargo innocently, and having delivered it according to his contract of carriage, without notice that the libelant claimed to be the true owner of it, I cannot see how any right of action has arisen upon which a recovery against the schooner can be based. Hutch. Carr. § 408; Wood's Browne, Carr. § 276. The libel must be dismissed, with costs.

The ship Slobodna, laden with 4,500 bales of cotton, went asbore on the Florida coast. After a few hours the assistance of libelants, all licensed wreckers, was accepted, but after 24 hours' effort to get her off, the anchor dragged, the vessel swung further aground, and soon filled. The vessel was lost, but the cargo nearly all saved ; 335 men and 41 vessels were engaged 2d davs, besides 9 vessels and 69 men, who assisted in saving 861 bales. Most of the cotton was taken from 6 to 1afeet of water, by naked divers without appliances, with more than ordinary labor. Held, it appearing that the salvors did their duty in attempting to save the property, that they are entitled to 25 per cent. on,cotton saved dry, valued at ,46 per bale; 33t per cent. on that partly wet, and valued at $38; 40 per cent. on that saved from less than 6 feet of water; and 50 per cent. on that saved from more than 6 feet of water; and on materials and stores, valued at $2,7[51, 45 per cent.

538

FEDERAL. REPORTER.

In Admiralty. Libel for salvage. L; W. Bethel and W. O. Malonex, for libelants and petitioners. G. B. Patter8on. for claimants.
LoCKE, J. This vessel, laden with 4,500 bales of cotton, from New Orleans, bound to Reval, went ashore on a projecting point of rock between French and Pickles reefs, on the Florida coast, about 100 miles from Key West, fl.t about 9 o'clock on the morning of the 16th of March, 1887, where she was soon boarded by the principal libelant in this case, who offered his assistance. The vessel lay upon the extreme outer point of the reef, in an open and exposed position, on hard rock bottom. She was under considerable sail, with a fresh wind, when she struck, and went ashore so as to be lifted, at high water, fully two feet from her or· dinary draft. For a time the master thought he would be able to get his vessel afloat, so declined to accept aid; but at length, at about 4 o'clock that afternoon, finding his efforts ineffectual, he accepted the assistance of the libelants, all professional, licensed wreckers, with several of their ves· sels. They carried out a 4,OOO-pound anchor, with 80 fathoms of chain and 85 fathoms of 8-inch hawser, and let it go in deep water, and, as the tide rose, heaved heavy strains with all the power they were able with a fourfold purchase led to the capstan. A part of the libelants manned the pumps, as there was found to be six feet of water in the hold, and fil:lally reduced it to four feet. They hove with what force they could until two hours past high water that night, but were unable to move the vessel. A portion of the libelants then went to breaking out and moving cotton aft; others constantly pumping in order to keep the water down. The next morning a schooner was hauled along-side to take cotton, but by the time she had received 29 bales the wind increased and the weather became so bad that she was compelled to drop off, and all the vessels, with one exception, had to leave their anchorage outside the reef and go inside to seek a harbor, leaving 60 of the libelants on board. These continued pumping, breaking out, and moving cargo aft, and heaving at the anchor as the tide rose. At 4 o'clock that afternoon-the 17th-the weather became worse; the wind shifted to the southward,a dangerous point,-and a violent squall struck the ship with such force as to lift her off tne bottom, so that the libelants succeeded in moving her astern, nearly, if not quite, half her length, but unfortunately the anchor at that time dragged; the ship, partly relieved from the bottom, swung broadside upon the reef, and thumped and pounded heavily, inereasing the leak so rapidly t4at within 40 minutes the water gained, notwithstanding constant pumping, from 4 feet to 15, the depth she was in, where it continued. After pumping a long time the libelants concluded that the vessel had bilged, and proceeded to save cargo. The salvors already represented by libel or petition have saved 4,810 bales, and an amount of loose cotton estimated at about 142 bales, and others are still at work saving what yet may be got from the wreck. It is true, the vessel has been lost, but the cargo has or will be almost entirely saved, though in a damaged condition.

BAKER V. CARGO AND MATERIALS OF THE SLOBODNA.

539

There were 335 men and 41 vessels, two of which were steamers, engaged in the general consort, and who worked all the time the weather would possibly permit, for a month, lacking 2 days. Part of the time it was impossible to work on board or lie along-side. Nine vessels and 69 men bavealso worked more or less on their own account, and saved 861 bales outside of the general consort. The work has been laborious in the extreme; the bales of cotton were pressed into the ship with n10ch force at first,. and, being wet, had become /!,reatly swollen, They were very heavy, many of them weighing over a half ton as they came out of the water. During the latter part of the service the bottom of the vessel was so crushed up that it held the bales under the beams, aO that it was almost impossible to break them out. Many of them were broken, or necessarily pulled apart, until the water was filled with a pulpy mass of loose cotton, broken ties, and dunnage that made it very difficult, and, to a certainextent, dangerous, to dive through it. The vessel so worked herself down into or amonp; the rocks that there was 17 or 18 feet of water through which the lower tiers of cotton were dived up. The salvors had no pliances for diving or saving labor, but it all had to be dived for by naked divers, and hoisted by hand. The bales had become so saturated and heavy that they would not float, but each had to be broken out. and 'slung underwater. About 1,700 bales have been dived up from more than6,and from that to 18, feet of water, and about 150 of loose saved in the same way. The great question in this case that must influence the amount of salvage is, Did the salvors do their whole duty in their attempts to save the property? First, was there any dereliction of duty in not preventing the vessel from swinging again harder aground when partly relieved from the bottom? And, 8econdly, could they have pumped out and saved her, after she had been partly lightened of her cargo? Salvors are held to a strict accountability for everything which is omitted to be done by them for the saving of property by every means within their power; and if from lack of energy, judgment, or skill they fail in one particular, the amount of salvage awarded, if any, will be reduced accordingly. It is not only honesty of purpose, but skill, energy, and good judgment in using every appliance which they can possibly command that is demanded. But courts cannot require impossibilities of them a.nd must only consider the means under their control. In this case, was it within their power to have foreseen and prevented by any degree of care or dil(records igence the dragging of the anchor? In the case of The St. of this court, 1872,) the vessel was permitted to swing back onto the reef by the breaking of the hawser, when the salvors had shown a most deplorable lack of skill or judgment in using a small line to lengthen out a large hawser, when it was within their power to have used a larger one, or increased the strength of that used by several doublings; and the . entire salvage was forfeited. But in this case the depth ot water was properly selected, the largest ,anchor carried out in the best direction with the strongest hawser that could be obtained; the weight of the anchor was fiuch that no reasonable man would have consid.ered it to bilCk

540

FEDERAL REPORTER.

it with another, but would have presumed it to hold, in bottom such as it was known to be, as much or more than the hawser. It seems that at the time of the service anyone would have conceded that everything within the power of the salvors had been done to float the ship; and but for the change and increase of the wind. the suddenness of the violent squall and sea, and the accidental breaking out or dragging of the anchor through the rock where it first held, it would have been successful. The suddenness and severity of the wind and squall prevented anything being done after the anchor had started until it was too late, and the vessel was evidently bilged and leaking so badly that no power of the libelants could control the amount of water in her. I am not satisfied that anything more could have been done to float the vessel than was before she was started from the bottom, or to prevent her going further ashore again, as she did. After partly discharging her, the question was very properly suggested, both by the wreckers and by a board of survey, whether she could not then be floated and brought to port; but in order to have done that it would have been necessary to control the water coming into her, or undoubtedly she would have sunk in deep water. Had the libelants had at their command a powerful steam-pump, or had it been within their power t() procure one, and they had not done so, and endeavored to float ner, I' should certainly consider them lacking in energy and enterprise requisite for such an occasion; but they had none. The master wrecker came t() Key West and endeavored to procure one, but was unable, and upon his return found it too late, as the weather hltd been so bad that the vessel was undoubtedly so broken as to be'beyond recovel,'- They have therefore, I consider, done all they could do in saving the cargo, materials, and stores, and them to a place of safety. What amount ought they to receive for this service? It is unquestionably a salvage service. The property was in jeopardy, in imminent peril of certain loss. It was only by such means as were used that it could be saved. It was an aJ.most uninhabited coast, a hundred miles from any assistance, and several hundred from any except what did offer itself. It was on a dangerous reef, the approach to which is at all times more or less perilous to vessels. The weather was bad part of the time, and all the salvors' vessels were" more or les8 exposed to dangers entirely different from those of ordinary navigation. The actual labor was ard uous and long continued, although perhaps the number of men employed for the time occupied may not be a true measure of the actual labor performed, as a good deal of the time was taken up by the smaller vessels bringing cotton to Key West, discharging it and returning; arid there was some of the time when it was impossible to work at the ship, as the sea was sweeping entirely over her, and all of those engaged in the service were compelled to lie at anchor inside of the reef. But their time was occupied either in working or waiting, and I consider the circumstances justified the employment oEthe large number, nor am I prepared to say that it could have been done with a smaller number, or in a shorter time. It is true, the amounts to be awarded rest in the discretion of the judge

BAKER f1. CARGO AND MATERIALS OJ!' THE SLOBODNA.

541

and the peculiar circumstances of each case; but, as remarked in The Neto, 15 Fed. Rep. 819, "this discretion 'should be controlled by certain general considerations which have been found to enterinto the estimates made by couns." I do not consider that an admiralty judge should depart from usual rates given in similar cases, and decree, according to his feelings at a particular time, whether liberal and generous or otherwise, in salvage cases more than in any other class of cases. In questions of salvage, courts cite precedents of amounts, and, it is presumed, are guided by those cases nearest parallel in circumstances, unless some good reason is found for a variation. Vide The John Albert, 4 Add. Records, 537. Numerous cases are found reported where the general features of the service are apparently almost identical with that rendered in this case, namely, where the vessel was lost, and the cargo saved with much labor and exposure. The Brothers, 2 Hagg. Adm. 195. £3,225 was given on amount of £9,680 saved. The Fleece, 3 W. Rob. 278. The ship Argus was lost on Charleston bar; the cotton saved, and brought to Charleston. Salvage on cotton one-third of the net, and on barrels of tar one-half. The Argus, 170. In The Friendship, Id. 175, one-fifth was given for $25,000 in specie, saved byfour men in a canoe, although it is presumed this was intended to compensate for the entire service, which resulted in the probable saving of life. In The John Gilpin, Olcott, 77, one-fifth of the net was. given. In the case of The Camanche, 8 Wall. 448, when the cargo of a heavy character was brought up, although in the harbor, one-third was allowed. In the well-known and frequently cited case of The Thetis, 3 Hagg. Adm. 14, 2 Knapp; 390, there was given as salvage costs and expenses a. trifle over one-third of the gross value of the property saved. The records of this district abound with cases of like character, where the vessels have been lost, but the cargoes either entirely or very nearly all saved; and if not exactly similar in all respects, sufficiently so to deserve attention. In 1838 the ship America was lost on the Tortugas. Twelve vessels and 120 men saved property worth $151,464. On $122,232 saved dry the court decreed 25 per cent.; on that saved wet, but without diving, 50 per cent., and 60 per cent. on that saved by diving. The total salvage was $47,971, being 31 per cent. of the value saved; and the shares of the men averaged $150. The ship Telamon was lost on Delta Shoals; the court allowed 27, 50, and 60 per cent. for saving cargo. The Yucatan, laden with cotton and pork, was lost near Cape Florida. The salvage was 43 per cent. on the cargo saved; shares, $62. The BreWster, cotton laden, was lost on Carrysfort reef; salvage, onethird. The Isaac Allerton was driven over the reef, and sunk in five fathoms water. Over 400 persons were engaged in saving cargo. Onehalf of the net value of the amount was decreed. In January, 1853, the ship Nathan Kimbal, cotton laden, went ashore but nine miles from Key West. Seven vessels and ninety-nine men saved cargo amounting to $56,093. Thirty per cent. was· given on that saved dry, and fifty

642

FEDERA.L REPORTER.

."

',.

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I

per cent. on that saved by diying and working in the water·. 4 Add. Records, 679. The brig Oimous, loaded with heavy assorted cargo, machinery, liltC., was lost. Fifty per cent. was given for saving her cargo. .In September, 1849, 8 vessels and 120 men saved $50,227 worth of cargo from The Maryland on Alabama reef, and bilged. Thirtysix per cent. was given on the net value. In 1839 the ship May Hawland was ldst on the reef, but cargo saved that sold for $23,651, upon which 43 per cent. was given. In 1837,45 per cent. was given on the cargo of the ship Alfred, lost on Carrysfort reef. In 1840 The Cora NeUie was lost near Tortugas, but $29,153 worth ·of cargo saved. The court gave 47 per cent. salvage. In 1836 the ship Ajax was lost, also on Carrysfort reef. Thirty-five per cent. was given on the dry, and fifty per cent. upon the damaged. In 1840 the ships Emery and NO'Iway were lost on the reef, but a large portion of their cargoes saved. In the former 47 per cent.,and in the latter 45 per cent., was given. In 1848 the ship Kristrel, loaded with cotton, was lost on the reef. One thousand four hundred bales were saved, of which one-third was given as salvage. In 1842, the cargo of the ship North America was saved, and a salvage of 45 per cent. given. The same year. cargo from the ship Tellumah was saved, valued a.t$26,841, upon which a salvageof$11,931 was given. In 1853, in the case ship Elimbeth Bruce, 45 and 50 per cent. were given for saving $8,276 worth of cargo. In 1855, 30 and 50 per cent. were given for saving $41,756 worth of cargo from the schooner Athalia; and 50 per cent. upon $6,535 worth of cotton from the ship Concordia, she having burned to the water.line. In 1856 the ship Mary Hale was lost on Salt Key bank. Several vessels saved cotton from her cargo valued at $35,364, upon which 36 and 45 per cent. was allowed. From The Helen E. Brooks, loaded with railroad iron, the cargo was saved, valued at $36,- . 227, upon which $22,754 salvage was given. In 1857 assorted cargo to the value of $29,776 was saved from the ship Pacific, upon which 30 per cent. of the gross was given. In 1859, $41,281 worth of cotton was saved from the wrecked bark Minnie, and 33t per cent. allowed upon the same. In 1858, $85,422.30 worth of cotton was saved from the ship Mulhouse. Twenty-five per cent. was allowed upon the dry, 45 per cent. upon the damaged, and 55 per cent. upon that saved by diving. In 1859, from the wreckof The Indian Hunter, salvors saved 3,432 bales ofcotton, valued at $88,220. Salvage of 25 per cent., 42, and 50 per cent. was given upon the dry, damaged, or saved by diving. The last case cited was almost precisely similar in the locality, season of the year, and character of the service rendered with the one under consideration. In the same year 30 per cent. net was given on a cargo of cotton saved from the ship Eliza Mallory, and 25 per cent. and 40 per cent. on the gross value of that saved from the ship Mary Coe. These are a few of the caSI)S of similar character as the present decided in this court previous to 1861, and iuan opinion in The Ocean Belle, that year, Judge MARVIN remarks:
"The most usual rates of salvage for saving cotton on this coast, when the ship has been lost and the cargo saved. has been 25 per cent. on the dry, 40

BAKER ". CARGO AND MATERIALS OF· THE SLOBODNA..

543

saved without diving, but taken from under water, and per cent. on 50. per cent.· and in some instances 55 and 60 per cent., for saving it by divhold. " ing in the .. Subsequently to that the in some cases, on account of the greatly increased value of cotton, and the large amount of property saved by the same parties within a short space of time, were considerably reduced. In the fall of 1865, during a severe hurricane, several large cotton ships were driven ashore or onto the reef, and more than a million and a half dollars' worth of cotton saved within a short space of time. The cotton was then appraised at from $75 per bale for the damaged to over $200 forthedry, and the ordinary rates were departed from, yet an amount decreed that paid the salvors more liberally than any salvage service has before or since. In the case of the cargo of the bark Waltham, saved mostly dry, with little labor, but 9 per cent. on a value of $205,000j and that from The Bickmare, with similar circumstances, .12 per cent. on $118,000 was given. But in that from The Caroline Negmith there was given on $312,110 saved dry, 10 per cent. j $24,000, somewhat damaged, 30 percent. ; and $74,483 dived up, 33t per cent.,giving for saving about 2,200 bales, $60,665.89, or nearly $28 a bale, which was in amount largest salvage ever decreed in one case in this court. On $190,522 saved from The Howard, 14 per cent. on the dry, and 40 per cent. on the damaged, was given; and on that saved from The John Wesley, 15 per cent. on the dry, appraised at 42 cents per pound, and 33t per cent. of that damaged, valued at $7.5 per bale. In 1871 a portion of th,ecargo of the Spanish bark Aquila was saved, for which the court paid 27 per cent. on the dry, and 42 per cent. on that wet and damaged, and 50 per cent. upon that saved by diving. The steam-ship Mi86-is8ippi was driven upon the coast above Cape Florida, where her cargo was saved by about 200 men, in 15 vessels from Key West, to the extent of $175,000. The court allowed 20 per cent. upon this entire amount. The Northwester, loaded with cotton, took fire while ana voyage from New Orleans. She came into the outer harbor oiKey West, where she was run aground and scuttled, in too shoal water, however, to submerge her to any great extent. The government steamer Arbutus, with powerful steam-pump, to a great degree extinguished the flames, and the salvors aided what they coulll in putting out the fire by hand. Subsequently, after the upper portion of the vessel had been entirely burned off, they saved what remained of the cargo. Much of it was saved from under the water. The court considered that the property was nearly within the harbor, and the labor was less than in such eases ordinarily ,and reduced the rates somewhat, giving 20 percent. on the dry, 33! on that wet, but not badly damaged, and 40 per cent. on proceeds of sale of materials and cargo so badly damaged as to be sold. The lapor was arduous and disagreeable, and barely compensated the salvorsj the men sharing but about $40 for nearly a month's work. . In 1872 the brig4mazonwas lost on the reef in the vicinity of where The Slobodnawas, and her cargo, consisting of cotton, was saved in .the same manner.. Thirty-five per cent. was gi.ven upon the entire cargo.. In the san;te year the ship St·. James, loaded with 1,500 tons of railroad

544

FEDERAL REPORTER.

iron, was lost on the same reef; The cargo was saved with great exposure and labor. 50 per cent., 62 per cent., and 68 per cent. were given upon the net proceeds of property saved by the salvors who arrived after the first company had by their lack of energy failed in floating the vessel, and to whom salvage was denied. In 1874, the British steamer Kwsissippi was run onto Fowey Rocks, near Cape Florida, when she filled with water. Her cargo, consisting of the coarser, hel;tvier kinds of assorted merchandise, cotton ties, hardware, earthen-ware, etc., was saved partly dry, and partly by diving or hooking up from the bottom. The salvors were saved much labor, as all the hoisting and discharging was done by the hoisting engine of the steamer. Thirty, forty, and flfty per oont. was given, according to the circumstances ofeach class of cargo saved, whether dry from the top of the water or by diving. The crews of two of the vessels that arrived first at the wreck shared $50, but the others from $15 to $32. In 1879 The Mary E. Riggs, laden with cotton, struck the reef but a short distance from where The Slobodna went ashore, and bilged before the salvors were able to get her afloat. They saved 4,646 bales of cotton, but the ship broke up before they could complete the service, and about 300 bales went adrift. The court allowed 22 per cent. on the net value of the dry, 33t on that' partly. wet, 40 per cent. on that wet and saved from less than 6 feet of water, and 50 per cent. on that dived up from more than that depth. The salvors shared but $61, although engaged for 24 days in a most unpleasant service. In June, 1883, the ship Northampton went ashore on Tennessee reef, and ·bilged before the salvors reached her. They saved about 1,500 bales of cotton, and 65,000 staves. Twenty-five and forty per cent. was given upon the cotton and fifty per cent. upQn the staves. The salvors were engaged 18 days in the service, and their shares amounted to $42.80. In December, 1885, the bark Guttenberg was lost on Bird Key shoal, one of the Tortugas group. Twenty vessels and more than 200 men were engaged from 15th December until 16th January saving cargo. The weather was bad, and it was during the coldest season of the year. A very large proportion of the cargo was under water, and necessitated much labor and exposure in diving it up. They saved 1,871 bales out of a cargo of 2,000, and about 2,000 staves, when the vessel went to pieces. Salvage of 25, 40, and 50 per cent. was given upon the value of that saved, according to the condition and character of labor of saving it. The crews of the first three vessels, who saved much of the dry cotton and materials, shared $82. But the rest shared from $15 to $45, according to the amounts saved by the different consorts. These few cases will show that while the rates given in this district for the services may seem high, the actual compensation has not been large. It is to be regretted that the modern wrecking appliance has not been introduced upon this coastj but the nature of the service, the extent of the reef line to be watched, and the uncertainty ofremunerative employment, has so far prevented it. The character of the bottom-sharp coral rock -demands that the assistance to be of service must be speedy. The introduction of improvements requires the concentration of capital at one

THE 'SOLIs.

point, tbat the lack of means of rapid communication renders oftentimes useless. In this case the cargo has been appraised; by appraisers appointed by this court, in its present condition and circumstances, at $46 per bale for the dry cotton, $38 per bale for that partly wet, $27 for that wet, and $16 per bale for the loose cotton, and no objection has been made to the same. The materials and stores have been sold for $2,751, and the proceeds brought into the registry of the court. Considering the entire case and all the surrounding circumstances, it is ordered that from the foregoing values all the expenses of landing, stor-. ing, watching, and labor heretofore incurred and the costs herein be de-" ducted, and the libelants and.petitioners have, receive, and recover the following rates of salvage on the net values so found of the quantities severally saved by them, to-wit: Oil the cotton saved dry and appraised at $46 per bale, 25 per cent. On that partly wet and appraised at $38 per bale, 331 per cent. On 435 bales wet saved from water less than 6 feet, 40 per cent. On the balance wet saved by diving in water more than 6 feet in depth and loose, 50 per cent., and on the proceeds of materials and stores, 45· per cent. This will give the salvors engaged in the entire service between $45 and $50, and others, who worked a portion of the time in saving special lots, a somewhat less amount, according to the amounts saved by them.

THE SOLIS. l BRAGA

v.

THE SOLIS.

(Otrcuit Oourt, E.

n. New York.

June 28, 1888.)

:&hRITti£E

On the 1st of June, 1883, C. :aros. & Co" co&lmerchants and colliery proprietors of London, who were accustomed to furnish supplies of .coal to the libelant, B., a coal merchant of Montevideo. enterQd into a contract with a steam-ship company to furnish all the coal required by the latter at MQntevideo for the use of their steamers during the remainder of the year 1883, payment to be .made by master's draft. This contract C. Bros. & Co. made in their own name, but acting in the matter as agents of B.. to whom the contract was sent. in the regular course of business between them and B. ,Thereafter B. furnished coal at Montevideo to three vessels of the steam-ship company, at the request of their respective masters. and received for the same in each case the master's draft on the steam-ship company. The company subsequently, and before the maturity of the drafts, went into bankruptcy, and B. brought this suit against one of the vessels to whicll he had furnished coal. A mortgagee of the vessel defended on the ground that the ellal had been furnished on the credit of the owner, not the vessel. The draft was tendered on the trial to proctor for claimant. The court finding as a fact deducible from the facts of the case that B. furnished the coal to the steamship on the credit of the vessel. held, that libelant's claim constituted a maritime lien on the steam-ship, and that he was entitled to a decree.
V .35F.no.7-35